Justice Amy Coney Barrett may have penned the majority opinion in the Supreme Court’s recent case on birthright citizenship and nationwide injunctions. But it was Justice Ketanji Brown Jackson and her dissent that landed in the spotlight — and not in a good way.
In her opinion for the 6-3 majority in Trump v. Casa, INC, Barrett jabbed at Jackson, suggesting that her dissent was “untethered” to any past precedent and stood in direct opposition to the Constitution.
“We will not dwell on JUSTICE JACKSON’S argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary,” Barrett wrote.
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But a closer look at Jackson’s dissent reveals that Barrett left out some of the strangest rabbit holes down which Jackson attempted to take the Court.
“A Martian arriving here from another planet would see these circumstances and surely wonder: ‘what good is the Constitution, then?'” Jackson wrote in her dissent.
“What, really, is this system for protecting people’s rights if it amounts to this—placing the onus on the victims to invoke the law’s protection, and rendering the very institution that has the singular function of ensuring compliance with the Constitution powerless to prevent the Government from violating it? ‘Those things Americans call constitutional rights seem hardly worth the paper they are written on!'”
Jackson was roundly mocked for adding a parenthetical “wait for it,” ostensibly to give her dissent a dramatic pause.
KBJ’s dissent actually includes the phrase…wait for it… pic.twitter.com/AGMu2KQULB
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“As I understand the concern, in this clash over the respective powers of two coordinate branches of Government, the majority sees a power grab — but not by a presumably lawless Executive choosing to act in a manner that flouts the plain text of the Constitution. Instead, to the majority, the power-hungry actors are . . . (wait for it) . . . the district courts.”
Throughout her dissent, Jackson — whom President Joe Biden named to the Court after pledging to nominate a black woman — gives no quarter to the possibility that district courts, by dramatically increasing the power and reach of their own decisions based solely on their demand that it be so, actually are the ones participating in a “power grab” — nor does she consider the possibility that an executive acting in a way that she dislikes is not necessarily a lawless one.